NASBLA Roundtable

Operating under the influence

  • 1.  Operating under the influence

    Posted 06-15-2021 04:11 PM
    A question for LE folks...

    Hypothetically--if a boater caused an accident, and had a Blood Alcohol Content of .02, is there any jurisdiction where the boater might not get charged with boating under the influence?


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    Chris Edmonston
    President
    BoatU.S. Foundation for Boating Safety & Clean Water
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  • 2.  RE: Operating under the influence

    Posted 06-16-2021 07:53 AM

    The standards found in Title 33 of the Code of Federal Regulations, part 95, applicable to individuals under the influence aboard vessels are BAC .08 for recreational and .04 for commercial.  However, state statutes would apply within the geographic boundaries of that state.  Perhaps a BUI might not stand beyond state waters or within federal jurisdiction.






  • 3.  RE: Operating under the influence

    Posted 06-16-2021 08:16 AM
    Maryland's Natural Resources (NR) laws, as it relates to OWI/OUI, generally mirror the state's Transportation Article (TA). As such, both NR and TA laws are bound by a Courts & Judicial Proceedings Article that dictates the following:

    "If at the time of testing a person has an alcohol concentration of 0.05 or less, as determined by an analysis of the person's blood or breath, it shall be presumed that the person was not under the influence of alcohol and that the person was not driving while impaired by alcohol."

    Therefore, charges for OWI/OUI would not be prima facie evidence of impairment, however, the state could still attempt to prosecute based on poor performance of SFSTs and other observations; this however would likely not be pursued unless there were other circumstances involving the incident i.e. death and/or serious injury.

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    James Satterfield
    Lieutenant
    Maryland Natural Resources Police
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  • 4.  RE: Operating under the influence

    Posted 06-16-2021 08:40 AM
    Morning Chris.

    I agree with the information posted by both Todd and James, regarding your question and a BAC level of .02.  Under both recreational and commercial limits, it would be tough to prosecute.  However, behavior and testing of impairment might reveal circumstances that impairment would be a contributing factor in both the investigation and possible prosecution.

    Can you provide any additional information of the hypothetical question....

    Thanks

    John

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    John Fetterman
    Deputy Executive Director
    NASBLA
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  • 5.  RE: Operating under the influence

    Reporting Project
    Workgroup
    Posted 06-16-2021 08:38 AM
    He probably would not get charged in Tennessee unless there were other indicators of impairment that could be introduced as evidence.  If the BAC doesn't reach .08 then the officer must prove impairment by some other means.

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    Glenn Moates
    Asssitant Chief, Boating & Law Enforcement Division
    Tennessee Wildlife Resources Agency
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  • 6.  RE: Operating under the influence

    CRBP Commissioner
    Posted 06-16-2021 09:28 AM
    In Oklahoma, the short answer is "It depends":
    A.  Was the operator a minor?  In Oklahoma a minor is prohibited from driving a vehicle or operating a vessel with any measurable amount of alcohol.
    B.  Was the operator under the influence of other intoxicants such as prescription meds, marihuana, inhalants (such as glue, gasoline or paint), over the counter medications, illegal drugs/controlled dangerous substances or any other substances that would contribute to OUI?  See statute wording below.
    C.  Can the arresting officer articulate why the lesser BAC (in this case .02) affected the persons judgment and ability to safely operate their vessel?  While the prima facia level of "legal" intoxication is .08, we all know that that is a standard established by legislation.  The test results do matter but the following section from Oklahoma's boating laws explains further:

    §63-4210.8.  Operation or control of vessel under influence of alcohol or other intoxicating substance.
    1. It shall be unlawful for any person to operate or be in actual physical control of a vessel upon the waters of this state, except privately owned waters, who:
    2. Has a blood or breath alcohol concentration of eight-hundredths (0.08) or more at the time of a test of the person's blood or breath;
    3. Is under the influence of any other intoxicating substance to a degree which renders such person incapable of safely operating a vessel upon the waters of this state; or
    4. Is under the influence of alcohol and any other intoxicating substance to a degree which renders such person incapable of safely operating a vessel upon the waters of this state.

    D.  Will the DA's office prosecute the case?  The arrest/citation and filing of charges are separate events.  Usually if the District Attorney's Office doesn't feel the case has enough merit or strong enough evidence for prosecution, charges will be reduced or dismissed.  It is important to remind LE officers that while the case may not make it to court, they possibly saved the life of the intoxicated operator and other innocent boaters by removing an impaired operator from the waterways.

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    Lt. Mark Brown
    Boating Law Administrator
    Oklahoma Highway Patrol Marine Enforcement Section
    Oklahoma City, OK USA
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  • 7.  RE: Operating under the influence

    Posted 06-16-2021 09:22 AM
    There must be more of a story to this question?  It was done somewhere??

    A boater is presumed intoxicated in my state at. 08% BAC.  If a BAC of .02% is the only evidence you have... you don't have sufficient evidence to charge a boater with BUI.

    Interested in the rest of the story...

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    Todd Baker
    Marine Deputy (Retired)
    Clark County (WA) Sheriff's Office (Retired)
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  • 8.  RE: Operating under the influence

    Posted 06-16-2021 10:12 AM

    In Washington State, if impairment could be shown, i.e., through SFST and operation, they could still be charged with Assault by Watercraft for substantial injury or Homicide by Watercraft in the case of death.

     

    Matthew Stowers

    Marine Law Enforcement Coordinator

    Boating Program

    Washington State Parks and Recreation Commission

    1111 Israel Road SW, Olympia, WA 98504

    Matt.Stowers@parks.wa.gov

    (360)791-4668

     






  • 9.  RE: Operating under the influence

    Posted 06-16-2021 11:56 AM
    I can't remember the exact verbiage, but I think there is some type of 'Presumptive understanding' in the jury instructions where .02 or less would be presumed not under the influence, .02 to .08 is a presumed a possibility of being under the influence, and over .08 would be presumed to be under the influence.  However, under the influence isn't just about BAC but if their normal faculties are impaired.  I was successful with a BUI case with a BAC of .00 and DRE evaluation (and urine) showing impairment of other substances.  I think it comes down to the totality of the circumstances and what the SAO is comfortable prosecuting.

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    Mia Ruggiero
    Investigator
    FWC
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  • 10.  RE: Operating under the influence

    Posted 06-16-2021 12:47 PM
    Chris,
    This will not be a simple answer to a seemingly simple question.  Being charged with operating under the influence and being prosecuted for it are two separate issues.  Impairment charges based on what the officer observes in the field may not be accepted by a district attorney for prosecution if the blood alcohol concentration (BAC) is below a statutory level.  Every person reacts to the consumption of alcohol differently and individuals who don't drink regularly likely will show greater effects of impairment at lower BAC levels and in many cases, any combination of drugs will increase the effects.  A prosecution of this nature really depends on the officer's detailed observations of the subject's behavior.  In most cases, impairment charges at lower BAC levels result in reduced charges.  So the partial answer is yes, a person may be charged with impairment at lower BAC levels, but prosecutorial outcomes may differ.

    If the question is regarding an evidentiary BAC, the charges and subsequent prosecution really depends on the relationship of the BAC to the time of operation.  If the blood alcohol concentration was obtained several hours after the incident, as is the case in some instances, a retrograde analysis (using a standard natural rate of elimination over a known period of time to calculate the BAC) would establish an estimated BAC at the time of operation that could provide an evidentiary basis to support impairment and associated charges.  Typically, if a BAC of .02 was obtained at the time of operation absent observations of obvious impairment, the level of alcohol in the blood would not be sufficient to support a charge of impairment but could provide evidence for and be contributory to other charges such as careless or reckless operation, or contributory to other violations of rules of navigation.  In many states, if the operator was under 21, that BAC or in some instances, any measurable BAC could lead to alcohol related charges following an incident.  In my experience, presenting BUI training to law enforcement officers across the nation, I know of no jurisdiction or state that would pursue a charge of operating under the influence if an evidentiary BAC of .02 was obtained and no observations of obvious impairment were documented, or no drugs were present at the time of operation.

    That being the reality of prosecution, both the National Highway Traffic Safety Administration (NHTSA) and National Transportation Safety Board (NTSB) have concluded that discernable alcohol impairment exists at lower blood alcohol levels.  Scientific research on this topic concluded that alcohol impairment (i.e. relaxation and altered emotional states) begin with the absorption of the first alcoholic beverage-- and increases its effects and symptoms with each subsequent drink. Additionally, the studies indicated that states proposing legislation to lower the statutory levels below .08 BAC would be supported by scientific research in doing so.   

    Hope that helps, sincerely,
    Maj. Tim Baumgarten (ret.)
    Arizona Game and Fish Department  





  • 11.  RE: Operating under the influence

    Posted 06-16-2021 03:16 PM
    Chris,
    This will not be a simple answer to a seemingly simple question.  Being charged with operating under the influence and being prosecuted for it are two separate issues.  Impairment charges based on what the officer observes in the field may not be accepted by a district attorney for prosecution if the blood alcohol concentration (BAC) is below a statutory level.  Every person reacts to the consumption of alcohol differently and individuals who don't drink regularly likely will show greater effects of impairment at lower BAC levels and in many cases, any combination of drugs will increase the effects.  A prosecution of this nature really depends on the officer's detailed observations of the subject's behavior.  In most cases, impairment charges at lower BAC levels result in reduced charges.  So the partial answer is yes, a person may be charged with impairment at lower BAC levels, but prosecutorial outcomes may differ.

    If the question is regarding an evidentiary BAC, the charges and subsequent prosecution really depends on the relationship of the BAC to the time of operation.  If the blood alcohol concentration was obtained several hours after the incident, as is the case in some instances, a retrograde analysis (using a standard natural rate of elimination over a known period of time to calculate the BAC) would establish an estimated BAC at the time of operation that could provide an evidentiary basis to support impairment and associated charges.  Typically, if a BAC of .02 was obtained at the time of operation absent observations of obvious impairment, the level of alcohol in the blood would not be sufficient to support a charge of impairment but could provide evidence for and be contributory to other charges such as careless or reckless operation, or contributory to other violations of rules of navigation.  In many states, if the operator was under 21, that BAC or in some instances, any measurable BAC could lead to alcohol related charges following an incident.  In my experience, presenting BUI training to law enforcement officers across the nation, I know of no jurisdiction or state that would pursue a charge of operating under the influence if an evidentiary BAC of .02 was obtained and no observations of obvious impairment were documented, or no drugs were present at the time of operation.

    That being the reality of prosecution, both the National Highway Traffic Safety Administration (NHTSA) and National Transportation Safety Board (NTSB) have concluded that discernable alcohol impairment exists at lower blood alcohol levels.  Scientific research on this topic concluded that alcohol impairment (i.e. relaxation and altered emotional states) begin with the absorption of the first alcoholic beverage-- and increases its effects and symptoms with each subsequent drink. Additionally, the studies indicated that states proposing legislation to lower the statutory levels below .08 BAC would be supported by scientific research in doing so.   

    Hope that helps, sincerely,
    Maj. Tim Baumgarten (ret.)
    Arizona Game and Fish Department  





  • 12.  RE: Operating under the influence

    Posted 06-16-2021 03:18 PM
    Lots of GREAT responses--thanks for all the thoughtful answers!

    This truly is a hypothetical question. We recently were working on a 'don't drink' press release and I am just curious about the consequences of having an accident/violation if you're under a .04 BAC. I always believed that you can be under .04 and still get charged depending on what happens. (And that's charged, not tried/convicted)

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    Chris Edmonston
    President
    BoatU.S. Foundation for Boating Safety & Clean Water
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  • 13.  RE: Operating under the influence

    Posted 06-17-2021 09:54 AM
    Chris,

    Even though the  BAC was under citable limits it is still a contributing factor to the legal consequences of an accident. As some have mentioned there are other statutes such as assault by watercraft, negligent or gross negligent operation of a vessel and a sundry of lesser offenses such as navigation rules violations that could apply. There would also be civil liability that carries a lesser burden of proof where impairment would play a significant role.

    v/r

    Dan

    Dan Shipman
    Recreational Boating Program Specialist
    13th Coast Guard District
    Seattle, WA.